Prepared by R.R. Donnelley Financial -- 2004 Preferred Stock Plan




 Exhibit 10.5 
  
 FOX HOLLOW TECHNOLOGIES, INC. 
  

2004 PREFERRED STOCK PLAN 
  
 1. Purposes of the Plan. The purposes of this 2004 Preferred Stock Plan are to retain the best available personnel for positions of substantial
responsibility, to provide reasonable incentive to Employees, Directors and Consultants and to promote the success of the Company’s business. The Plan permits the grant of Incentive Stock Options, Nonstatutory Stock Options, and Stock Purchase
Rights. 
  
 2. Definitions. As used herein, the following
definitions will apply: 
  
 (a) “Administrator”
means the Board or any of its Committees as will be administering the Plan in accordance with Section 4 hereof. 
  
 (b) “Applicable Laws” means the requirements relating to the administration of stock option plans under U.S. state corporate laws, U.S.
federal and state securities laws, the Code, any stock exchange or quotation system on which the Common Stock is listed or quoted and the applicable laws of any other country or jurisdiction where Options or Stock Purchase Rights are granted under
the Plan. 
  
 (c) “Certificate of Incorporation”
means the Amended and Restated Certificate of Incorporation of the Company, as amended to date and hereafter. 
  
 (d) “Board” means the Board of Directors of the Company. 
  
 (e) “Change in Control” means the occurrence of any of the following events: 
  
 (i) Any “person” (as such term is used in Sections 13(d) and
14(d) of the Exchange Act) becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the total voting power represented
by the Company’s then outstanding voting securities, except that any change in the beneficial ownership of the securities of the Company as a result of a private financing of the Company that is approved by the Board, will not be deemed to be a
Change in Control; or 
  
 (ii) The consummation of the sale or
disposition by the Company of all or substantially all of the Company’s assets; or 
  
 (iii) The consummation of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or its parent) at least fifty percent (50%) of the total voting power represented by the voting securities of the
Company or such surviving entity or its parent outstanding immediately after such merger or consolidation. 
  
 (f) “Code” means the Internal Revenue Code of 1986, as amended. 








 (g) “Committee” means a committee of Directors or of other individuals satisfying
Applicable Laws appointed by the Board in accordance with Section 4 hereof. 
  
 (h) “Common Stock” means the Common Stock of the Company. 
  
 (i) “Company” means Fox Hollow Technologies, Inc., a Delaware corporation. 
  
 (j) “Consultant” means any person who is engaged by the Company or any Parent or Subsidiary to render
consulting or advisory services to such entity. 
  
 (k)
“Director” means a member of the Board. 
  
 (l)
“Disability” means total and permanent disability as defined in Section 22(e)(3) of the Code. 
  
 (m) “Employee” means any person, including officers and Directors, employed by the Company or any Parent or Subsidiary of the Company.
Neither service as a Director nor payment of a director’s fee by the Company will be sufficient to constitute “employment” by the Company. 
  
 (n) “Exchange Act” means the Securities Exchange Act of 1934, as amended. 
  
 (o) “Fair Market Value” means, as of any date, the value of Preferred Stock determined in good faith by the
Administrator. 
  
 (p) “Incentive Stock Option”
means an Option intended to qualify as an incentive stock option within the meaning of Section 422 of the Code.  
  
 (q) “Liquidity Event” means the occurrence of any of the following events: 
  
 (i) the Company is consolidated or merged with, or acquired by, a company that, at the time of the transaction (x) has a
class of securities registered under Section 12 of the Exchange Act, (y) is required to file reports under Section 15(d) of the Exchange Act, or (z) has filed a registration statement under the Securities Act with the Securities and Exchange
Commission which has not yet been withdrawn; 
  
 (ii) the closing
of the Company’s initial firm commitment underwritten public offering pursuant to a registration statement under the Securities Act covering the offer and sale of Common Stock to the public; or 
  
 (iii) the registration of a class of the Company’s securities under
Section 12 of the Exchange Act. 
  
 (r) “Nonstatutory
Stock Option” means an Option not intended to qualify as an Incentive Stock Option. 
  

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 (s) “Option” means a stock option granted pursuant to the Plan. 
  
 (t) “Option Agreement” means a written or electronic
agreement between the Company and an Optionee evidencing the terms and conditions of an individual Option grant. The Option Agreement is subject to the terms and conditions of the Plan. 
  
 (u) “Optioned Stock” means the Preferred Stock or Common Stock subject to an Option or a Stock Purchase
Right. 
  
 (v) “Optionee” means the holder of an
outstanding Option or Stock Purchase Right granted under the Plan. 
  
 (w) “Parent” means a “parent corporation,” whether now or hereafter existing, as defined in Section 424(e) of the Code. 
  
 (x) “Plan” means this 2004 Preferred Stock Plan. 
  

(y) “Preferred Stock” means the Series E Preferred Stock of the Company. 
  
 (z) “Restricted Stock” means Shares issued pursuant to a Stock Purchase Right or Shares of restricted stock
issued pursuant to an Option. 
  
 (aa) “Restricted Stock
Purchase Agreement” means a written agreement between the Company and the Optionee evidencing the terms and restrictions applying to Shares purchased under a Stock Purchase Right. The Restricted Stock Purchase Agreement is subject to the
terms and conditions of the Plan and the notice of grant. 
  
 (bb)
“Securities Act” means the Securities Act of 1933, as amended. 
  
 (cc) “Service Provider” means an Employee, Director or Consultant. 
  
 (dd) “Share” means a share of the Preferred Stock or, on and after the conversion of the Preferred Stock into Common Stock, a share of
the Common Stock, in either case, as adjusted in accordance with Section 13 below. 
  
 (ee) “Stock Purchase Right” means a right to purchase Preferred Stock pursuant to Section 11 below. 
  
 (ff) “Subsidiary” means a “subsidiary corporation,” whether now or hereafter existing, as defined in Section 424(f) of the
Code. 
  
 3. Stock Subject to the Plan. Subject to the
provisions of Section 13 of the Plan, the maximum aggregate number of Shares that may be subject to option and sold under the Plan is 1,100,000 Shares. The Shares may be authorized but unissued, or reacquired Shares. 
  
 If an Option or Stock Purchase Right expires or becomes unexercisable without
having been exercised in full, the unpurchased Shares that were subject thereto will become 
  

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 available for future grant or sale under the Plan (unless the Plan has terminated). However, Shares that have actually
been issued under the Plan, upon exercise of either an Option or Stock Purchase Right, will not be returned to the Plan and will not become available for future distribution under the Plan, except that if unvested Shares of Restricted Stock are
repurchased by the Company, such Shares will become available for future grant under the Plan. 
  
 4. Administration of the Plan. 
  
 (a) Administrator. The Plan will be administered by the Board or a Committee appointed by the Board, which Committee will be constituted to comply with Applicable Laws. 
  
 (b) Powers of the Administrator. Subject to the provisions of the Plan and, in the case of a Committee, the specific
duties delegated by the Board to such Committee, and subject to the approval of any relevant authorities, the Administrator will have the authority in its discretion: 
  
 (i) to determine the Fair Market Value; 
  
 (ii) to select the Service Providers to whom Options and Stock Purchase Rights may from time to time be granted hereunder;

  
 (iii) to determine the number of Shares to be covered by each
such award granted hereunder; 
  
 (iv) to approve forms of
agreement for use under the Plan; 
  
 (v) to determine the terms
and conditions of any Option or Stock Purchase Right granted hereunder. Such terms and conditions include, but are not limited to, the exercise price, the time or times when Options or Stock Purchase Rights may be exercised (which may be based on
the occurrence of certain events, performance criteria and/or seniority), any vesting acceleration or waiver of forfeiture restrictions, and any restriction or limitation regarding any Option or Stock Purchase Right or the Shares relating thereto,
based in each case on such factors as the Administrator, in its sole discretion, will determine; 
  
 (vi) to prescribe, amend and rescind rules and regulations relating to the Plan, including rules and regulations relating to sub-plans established for
the purpose of satisfying applicable foreign laws; 
  
 (vii) to
allow Optionees to satisfy withholding tax obligations by electing to have the Company withhold from the Shares to be issued upon exercise of an Option or Stock Purchase Right that number of Shares having a Fair Market Value equal to the minimum
amount required to be withheld. The Fair Market Value of the Shares to be withheld will be determined on the date that the amount of tax to be withheld is to be determined. All elections by Optionees to have Shares withheld for this purpose will be
made in such form and under such conditions as the Administrator may deem necessary or advisable; and 
  

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 (viii) to construe and interpret the terms of the Plan and Options granted pursuant to the Plan.

  
 (c) Effect of Administrator’s Decision. All
decisions, determinations and interpretations of the Administrator will be final and binding on all Optionees. 
  
 5. Eligibility. Nonstatutory Stock Options and Stock Purchase Rights may be granted to Service Providers. Incentive Stock Options may be granted
only to Employees. 
  
 6. Limitations. 
  
 (a) Incentive Stock Option Limit. Each Option will be designated in
the Option Agreement as either an Incentive Stock Option or a Nonstatutory Stock Option. However, notwithstanding such designation, to the extent that the aggregate Fair Market Value of the Shares with respect to which Incentive Stock Options are
exercisable for the first time by the Optionee during any calendar year (under all plans of the Company and any Parent or Subsidiary) exceeds $100,000, such Options will be treated as Nonstatutory Stock Options. For purposes of this Section 6(a),
Incentive Stock Options will be taken into account in the order in which they were granted. The Fair Market Value of the Shares will be determined as of the time the Option with respect to such Shares is granted. 
  
 (b) At-Will Employment. Neither the Plan nor any Option or Stock
Purchase Right will confer upon any Optionee any right with respect to continuing the Optionee’s relationship as a Service Provider with the Company, nor will it interfere in any way with his or her right or the Company’s right to
terminate such relationship at any time, with or without cause, and with or without notice. 
  
 7. Term of Plan. Subject to stockholder approval in accordance with Section 19, the Plan will become effective upon its adoption by the Board. Unless sooner terminated under Section 15, it will continue in
effect for a term of ten (10) years from the later of (i) the effective date of the Plan, or (ii) the earlier of the most recent Board or stockholder approval of an increase in the number of Shares reserved for issuance under the Plan. 

 
 8. Term of Option. The term of each Option will be stated in the
Option Agreement; provided, however, that the term will be no more than ten (10) years from the date of grant thereof. In the case of an Incentive Stock Option granted to an Optionee who, at the time the Option is granted, owns stock representing
more than ten percent (10%) of the voting power of all classes of stock of the Company or any Parent or Subsidiary, the term of the Option will be five (5) years from the date of grant or such shorter term as may be provided in the Option Agreement.

  

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 9. Option Exercise Price and Consideration. 
  
 (a) Exercise Price. The per share exercise price for the Shares to be
issued upon exercise of an Option will be such price as is determined by the Administrator, but will be subject to the following: 
  
 (i) In the case of an Incentive Stock Option 
  
 (A) granted to an Employee who, at the time of grant of such Option, owns stock representing more than ten percent (10%) of the voting power of all
classes of stock of the Company or any Parent or Subsidiary, the exercise price will be no less than 110% of the Fair Market Value per Share on the date of grant.  
  
 (B) granted to any other Employee, the per Share exercise price will be no less than 100% of the Fair Market Value per
Share on the date of grant.  
  
 (ii) In the case of a
Nonstatutory Stock Option 
  
 (A) granted to a Service Provider
who, at the time of grant of such Option, owns stock representing more than ten percent (10%) of the voting power of all classes of stock of the Company or any Parent or Subsidiary, the exercise price will be no less than 110% of the Fair Market
Value per Share on the date of grant. 
  
 (B) granted to any
other Service Provider, the per Share exercise price will be no less than 85% of the Fair Market Value per Share on the date of grant. 
  
 (iii) Notwithstanding the foregoing, Options may be granted with a per Share exercise price other than as required above pursuant to a merger or other
corporate transaction. 
  
 (b) Forms of Consideration. The
consideration to be paid for the Shares to be issued upon exercise of an Option, including the method of payment, will be determined by the Administrator (and, in the case of an Incentive Stock Option, will be determined at the time of grant). Such
consideration may consist of, without limitation, (1) cash, (2) check, (3) promissory note, (4) other Shares, provided Shares acquired directly from the Company (x) have been owned by the Optionee for more than six months on the date of surrender,
and (y) have a Fair Market Value on the date of surrender equal to the aggregate exercise price of the Shares as to which such Option will be exercised, (5) consideration received by the Company under a cashless exercise program implemented by the
Company in connection with the Plan, or (6) any combination of the foregoing methods of payment. In making its determination as to the type of consideration to accept, the Administrator will consider if acceptance of such consideration may be
reasonably expected to benefit the Company. 
  

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 10. Exercise of Option. 
  
 (a) Procedure for Exercise; Rights as a Stockholder. Any Option granted hereunder will be exercisable according to
the terms hereof at such times and under such conditions as determined by the Administrator and set forth in the Option Agreement. An Option may not be exercised for a fraction of a Share. Except in the case of Options granted to officers, Directors
and Consultants, Options will become exercisable at a rate of no less than 20% per year over five (5) years from the date the Options are granted. 
  
 An Option will be deemed exercised when the Company receives (i) written or electronic notice of exercise (in accordance with the Option Agreement) from
the person entitled to exercise the Option, and (ii) full payment for the Shares with respect to which the Option is exercised. Full payment may consist of any consideration and method of payment authorized by the Administrator and permitted by the
Option Agreement and the Plan. Shares issued upon exercise of an Option will be issued in the name of the Optionee or, if requested by the Optionee, in the name of the Optionee and his or her spouse. Until the Shares are issued (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder will exist with respect to the Shares, notwithstanding the exercise of
the Option. The Company will issue (or cause to be issued) such Shares promptly after the Option is exercised. No adjustment will be made for a dividend or other right for which the record date is prior to the date the Shares are issued, except as
provided in Section 13 of the Plan. 
  
 Exercise of an Option in
any manner will result in a decrease in the number of Shares thereafter available, both for purposes of the Plan and for sale under the Option, by the number of Shares as to which the Option is exercised. 
  
 (b) Termination of Relationship as a Service Provider. If an Optionee
ceases to be a Service Provider, such Optionee may exercise his or her Option within thirty (30) days of termination, or such longer period of time as specified in the Option Agreement, to the extent that the Option is vested on the date of
termination (but in no event later than the expiration of the term of the Option as set forth in the Option Agreement). If, on the date of termination, the Optionee is not vested as to his or her entire Option, the Shares covered by the unvested
portion of the Option will revert to the Plan. If, after termination, the Optionee does not exercise his or her Option within the time specified by the Administrator, the Option will terminate, and the Shares covered by such Option will revert to
the Plan. 
  
 (c) Disability of Optionee. If an Optionee
ceases to be a Service Provider as a result of the Optionee’s Disability, the Optionee may exercise his or her Option within six (6) months of termination, or such longer period of time as specified in the Option Agreement, to the extent the
Option is vested on the date of termination (but in no event later than the expiration of the term of such Option as set forth in the Option Agreement). If, on the date of termination, the Optionee is not vested as to his or her entire Option, the
Shares covered by the unvested portion of the Option will revert to the Plan. If, after termination, the Optionee does not exercise his or her Option within the time specified herein, the Option will terminate, and the Shares covered by such Option
will revert to the Plan. 
  

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 (d) Death of Optionee. If an Optionee dies while a Service Provider, the Option may be exercised
within six (6) months following Optionee’s death, or such longer period of time as specified in the Option Agreement, to the extent that the Option is vested on the date of death (but in no event later than the expiration of the term of such
Option as set forth in the Option Agreement) by the Optionee’s designated beneficiary, provided such beneficiary has been designated prior to Optionee’s death in a form acceptable to the Administrator. If no such beneficiary has been
designated by the Optionee, then such Option may be exercised by the personal representative of the Optionee’s estate or by the person(s) to whom the Option is transferred pursuant to the Optionee’s will or in accordance with the laws of
descent and distribution. If, at the time of death, the Optionee is not vested as to his or her entire Option, the Shares covered by the unvested portion of the Option will immediately revert to the Plan. If the Option is not so exercised within the
time specified herein, the Option will terminate, and the Shares covered by such Option will revert to the Plan. 
  
 (e) Leaves of Absence. 
  
 (i) Unless the Administrator provides otherwise, vesting of Options granted hereunder to officers and Directors will be suspended during any unpaid leave
of absence. 
  
 (ii) A Service Provider will not cease to be an
Employee in the case of (A) any leave of absence approved by the Company or (B) transfers between locations of the Company or between the Company, its Parent, any Subsidiary, or any successor. 
  
 (iii) For purposes of Incentive Stock Options, no such leave may exceed
ninety (90) days, unless reemployment upon expiration of such leave is guaranteed by statute or contract. If reemployment upon expiration of a leave of absence approved by the Company is not so guaranteed, then three (3) months following the 91st
day of such leave, any Incentive Stock Option held by the Optionee will cease to be treated as an Incentive Stock Option and will be treated for tax purposes as a Nonstatutory Stock Option. 
  
 11. Stock Purchase Rights. 
  
 (a) Rights to Purchase. Stock Purchase Rights may be issued either
alone, in addition to, or in tandem with other awards granted under the Plan and/or cash awards made outside of the Plan. After the Administrator determines that it will offer Stock Purchase Rights under the Plan, it will advise the offeree in
writing or electronically of the terms, conditions and restrictions related to the offer, including the number of Shares that such person will be entitled to purchase, the price to be paid, and the time within which such person must accept such
offer. The terms of the offer will comply in all respects with Section 260.140.42 of Title 10 of the California Code of Regulations. The offer will be accepted by execution of a Restricted Stock Purchase Agreement in the form determined by the
Administrator. 
  
 (b) Repurchase Option. Unless the
Administrator determines otherwise, the Restricted Stock Purchase Agreement will grant the Company a repurchase option exercisable within 
  

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 90 days of the voluntary or involuntary termination of the purchaser’s service with the Company for any reason
(including death or disability). Unless the Administrator provides otherwise, the purchase price for Shares repurchased pursuant to the Restricted Stock Purchase Agreement will be the original price paid by the purchaser and may be paid by
cancellation of any indebtedness of the purchaser to the Company. The repurchase option will lapse at such rate as the Administrator may determine, provided, that except with respect to Shares purchased by officers, Directors and Consultants, the
repurchase option will in no case lapse at a rate of less than 20% per year over five (5) years from the date of purchase. 
  
 (c) Other Provisions. The Restricted Stock Purchase Agreement will contain such other terms, provisions and conditions not inconsistent with the
Plan as may be determined by the Administrator in its sole discretion. 
  
 (d) Rights as a Stockholder. Once the Stock Purchase Right is exercised, the purchaser will have rights equivalent to those of a stockholder and will be a stockholder when his or her purchase is entered upon the records of the duly
authorized transfer agent of the Company. No adjustment will be made for a dividend or other right for which the record date is prior to the date the Stock Purchase Right is exercised, except as provided in Section 13 of the Plan. 
  
 12. Limited Transferability of Options and Stock Purchase Rights.
Unless determined otherwise by the Administrator, Options and Stock Purchase Rights may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in any manner other than by will or the laws of descent and distribution, and may be
exercised during the lifetime of the Optionee, only by the Optionee. If the Administrator in its sole discretion makes an Option or Stock Purchase Right transferable, such Option or Stock Purchase Right may only be transferred (i) by will, (ii) by
the laws of descent and distribution, or (iii) to family members (within the meaning of Rule 701 of the Securities Act) through gifts or domestic relations orders, as permitted by Rule 701 of the Securities Act. 
  
 13. Adjustments; Dissolution or Liquidation; Merger or Change in
Control. 
  
 (a) Adjustments. In the event that any
dividend or other distribution (whether in the form of cash, Shares, other securities, or other property), recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase, or
exchange of Shares or other securities of the Company, or other change in the corporate structure of the Company affecting the Shares occurs, the Administrator, in order to prevent diminution or enlargement of the benefits or potential benefits
intended to be made available under the Plan, may (in its sole discretion) adjust the number and class of Shares that may be delivered under the Plan and/or the number, class, and price of Shares covered by each outstanding Option or Stock Purchase
Right; provided, however, that the Administrator will make such adjustments to the extent required by Section 25102(o) of the California Corporations Code. 
  
 (b) Dissolution or Liquidation. In the event of the proposed dissolution or liquidation of the Company, the Administrator will notify each Optionee
as soon as practicable prior to the effective date of such proposed transaction. To the extent it has not been previously exercised, an Option or Stock Purchase Right will terminate immediately prior to the consummation of such proposed action.

  

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 (c) Merger or Change in Control. In the event of a merger of the Company with or into another
corporation, or a Change in Control, each outstanding Option and Stock Purchase Right will be assumed or an equivalent option substituted by the successor corporation or a Parent or Subsidiary of the successor corporation. In the event that the
successor corporation in a merger or Change in Control refuses to assume or substitute for the Option or Stock Purchase Right, then the Optionee will fully vest in and have the right to exercise the Option or Stock Purchase Right as to all of the
Optioned Stock, including Shares as to which it would not otherwise be vested or exercisable. If an Option or Stock Purchase Right becomes fully vested and exercisable in lieu of assumption or substitution in the event of a merger or Change in
Control, the Administrator will notify the Optionee in writing or electronically that this Option or Stock Purchase Right will be fully exercisable for a period of fifteen (15) days from the date of such notice, and the Option or Stock Purchase
Right will terminate upon expiration of such period. For the purposes of this paragraph, the Option or Stock Purchase Right will be considered assumed if, following the merger or Change in Control, the option or right confers the right to purchase
or receive, for each Share subject to the Option or Stock Purchase Right immediately prior to the merger or Change in Control, the consideration (whether stock, cash, or other securities or property) received in the merger or Change in Control by
holders of Shares on the effective date of the transaction (and if such holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding Shares); provided, however, that if such
consideration received in the merger or Change in Control is not solely capital stock of the successor corporation or its Parent, the Administrator may, with the consent of the successor corporation, provide for the consideration to be received upon
the exercise of the Option or Stock Purchase Right, for each Share subject to the Option or Stock Purchase Right, to be solely common or preferred Stock of the successor corporation or its Parent equal in fair market value to the per share
consideration received by holders of Shares in the merger or Change in Control. 
  
 (d) Acceleration Upon a Change in Control or Liquidity Event. In the event of a Change in Control or a Liquidity Event, 100% of the Shares subject to any outstanding Option or Stock Purchase Right will
immediately vest and become exercisable. In addition, any outstanding unvested Shares of Restricted Stock will immediately vest and have any Company repurchase right with respect thereto lapse as to 100% of such Restricted Stock. 
  
 (e) Automatic Conversion of Preferred Stock. In the event of the
automatic conversion of the Preferred Stock into Common Stock in accordance with the terms of the Certificate of Incorporation, each outstanding Option and Stock Purchase Right immediately prior to such automatic conversion which remains outstanding
following such automatic conversion will be exercisable, following such automatic conversion, for that number of shares of Common Stock into which each outstanding share of Preferred Stock was converted at the time of such automatic conversion, and
the exercise price for each such share of Common Stock following such automatic conversion will be adjusted as deemed appropriate by the Administrator in its sole discretion. 
  
 14. Time of Granting Options and Stock Purchase Rights. The date of grant of an Option or Stock Purchase Right will,
for all purposes, be the date on which the Administrator makes the 
  

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 determination granting such Option or Stock Purchase Right, or such later date as is determined by the Administrator.
Notice of the determination will be given to each Service Provider to whom an Option or Stock Purchase Right is so granted within a reasonable time after the date of such grant. 
  
 15. Amendment and Termination of the Plan. 
  
 (a) Amendment and Termination. The Board may at any time amend, alter, suspend or terminate the Plan. 
  
 (b) Stockholder Approval. The Board will obtain stockholder approval
of any Plan amendment to the extent necessary and desirable to comply with Applicable Laws. 
  
 (c) Effect of Amendment or Termination. No amendment, alteration, suspension or termination of the Plan will impair the rights of any Optionee, unless mutually agreed otherwise between the Optionee and the
Administrator, which agreement must be in writing and signed by the Optionee and the Company. Termination of the Plan will not affect the Administrator’s ability to exercise the powers granted to it hereunder with respect to Options granted
under the Plan prior to the date of such termination. 
  
 16.
Conditions Upon Issuance of Shares. 
  
 (a) Legal
Compliance. Shares will not be issued pursuant to the exercise of an Option unless the exercise of such Option and the issuance and delivery of such Shares will comply with Applicable Laws and will be further subject to the approval of counsel
for the Company with respect to such compliance. 
  
 (b)
Investment Representations. As a condition to the exercise of an Option, the Administrator may require the person exercising such Option to represent and warrant at the time of any such exercise that the Shares are being purchased only for
investment and without any present intention to sell or distribute such Shares, and agree to enter into a holding period if, in the opinion of counsel for the Company, such a representation is required. 
  
 17. Inability to Obtain Authority. The inability of the Company to
obtain authority from any regulatory body having jurisdiction, which authority is deemed by the Company’s counsel to be necessary to the lawful issuance and sale of any Shares hereunder, will relieve the Company of any liability in respect of
the failure to issue or sell such Shares as to which such requisite authority will not have been obtained. 
  
 18. Reservation of Shares. The Company, during the term of this Plan, will at all times reserve and keep available such number of Shares as will be
sufficient to satisfy the requirements of the Plan. 
  
 19.
Stockholder Approval. The Plan will be subject to approval by the stockholders of the Company within twelve (12) months after the date the Plan is adopted. Such stockholder approval will be obtained in the degree and manner required under
Applicable Laws.  
  

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 20. Information to Optionees. The Company will provide to each Optionee and to each individual who
acquires Shares pursuant to the Plan, not less frequently than annually during the period such Optionee has one or more Options or Stock Purchase Rights outstanding, and, in the case of an individual who acquires Shares pursuant to the Plan, during
the period such individual owns such Shares, copies of annual financial statements. The Company will not be required to provide such statements to key employees whose duties in connection with the Company assure their access to equivalent
information. 
  

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